Jurisdiction – Digital Age Defensehttp://www.digitalagedefense.org/wp
On regulation of technologyTue, 22 Aug 2017 17:29:08 +0000en-UShourly1https://wordpress.org/?v=4.8.2Tech policy in the time of Trump (cross-post)http://www.digitalagedefense.org/wp/2016/12/17/tech-policy-in-the-time-of-trump/
Sat, 17 Dec 2016 18:41:56 +0000http://www.digitalagedefense.org/wp/?p=966[...]]]>The following was recently published on Techdirt, although with a different title.

Regardless of what one thinks about the apparent result of the 2016 election, it will inevitably present a number of challenges for America and the world. As Mike wrote about last week, they will inevitably touch on many of the tech policy issues often discussed here. The following is a closer look at some of the implications (and opportunities) with respect to several of them, given the unique hallmarks of Trump and his proposed administration.

The problem here is that our previous decades of relative political stability have allowed attitudesto become a bit too casual about the importance of free speech as an escape valve against tyranny. But now that the need to speak out is so critical for so many, perhaps it will make us all be a little less glib about it.

One area where we need to be less glib is in copyright. While I would not be surprised to see Trump do something damaging in this space (probably in furtherance of Trump TV), copyright policy has always cut across party lines, and saner policy has in the past had the support of several GOP members of Congress, some of whommay still be in office. The silver lining here is that now that the need to preserve free speech is so apparent, it may become easier to point out how copyright policy interferes with it. For instance, because President Trump, or anyone supporting him in government or otherwise, can so easily cause criticism of him to be disappeared simply by sending a takedown notice or have people cut off from their online services with simply the mere allegations of infringement (as they effectively could right now thanks to recent jurisprudence on DMCA Section 512(i)), opposing voices are extremely vulnerable. As the opposition party, Democrats in particular need to start realizing how IP rights in general (copyright and also trademark and other quasi-IP monopolies like publicity rights) have been providing censors with enormous leverage over other people’s speech. Now that these levers can be used against them and their constituencies, perhaps they will be more likely to see the problem and finally push back against it (or at least stop actively trying to make the situation even worse).

Mass surveillance/encryption. The problem with the policy debates on mass surveillance to date is that they have tended to get bogged down by the assumption that the government was inherently good, and that all the spying it did was in furtherance of protecting its people. Until now many of those who disagreed with that assumption have largely been marginalized. Now, however, it appears that millions of people will have serious doubts about the motivations of the chief executive. It is therefore going to be much harder for surveillance advocates to push the “trust us,” argument when the incoming government has already indicated its strong desire to punish its internal enemies. Libertarians were already alarmed by the power of the surveillance state, and more Democrats may start seeing things their way pretty soon. The opportunity here is that there is now a new framing to help people see what a significant constitutional violation and danger this surveillance represents.

Encryption raises the same issues, and, as with mass surveillance, the public and even other members of Congress may also soon come to the painful realization about how important it is for them and the public to have robust, workable, non-backdoored encryption available to them too. After all, as we saw with Nixon, it is not unprecedented for a President to spy on his political adversaries. But this time Trump can leverage the NSA to do it.

Net Neutrality/Intermediary immunity. There are (at least) two other policy areas where the importance of continuing to protect free speech principles remains evident. Regarding net neutrality, there’s little reason to believe Trump will have anything positive to contribute along these lines, unless he decides it is to his business advantage. But what has also become apparent from this election is the tremendous damage consolidated mass media can cause to democracy. Politics is too important to be left to just a few outlets to tell us about, yet without net neutrality that’s the situation we will be left with.

The danger posed by homogeneous media is also why bolstering the protection of internet intermediaries is so important. Their protection is what helps ensure that a diversity of voices can be heard. The unfortunate reality is that there will likely be a lot of calls by people unhappy with this election and its fallout to limit those voices, particularly those whose message is most divisive, and with them also the platforms that facilitate their speech. But it will be important to hold fast to the intermediary-shielding principles that have to date largely protected platforms from liability in their users’ content. It’s only by leaving them free to operate without fear of liability that they are most able to voluntarily refuse the most awful content and be available for the most good. Neither is the case if the government effectively takes that decision away from them with the threat of punitive law, particularly when that law will inevitably reflect the government’s own agenda regarding what it considers to be worthwhile content or not.

Internet governance. With regard to Internet governance, at least the TPP appears to be dead and with it its speech-chilling provisions. Trump claims to detest free trade treaties, and in this regard his presidency may be helpful for innovation policy, which has been poorly served by US trade representatives trying to bind the United States into secretly negotiated international trade agreements that undermine key American liberties by imposing crippling limitations and liability on tech businesses and other platforms. On the other hand, from time to time international accords are helpful and even necessary for technology businesses to continue to thrive, innovate, and employ people worldwide. (See, e.g., the former Safe Harbor rules.) Unfortunately Trump’s presidency appears to have precipitated a loss of credibility on the world stage, creating a situation where it seems unlikely that other countries will be as inclined to yield to American leadership on any further issues affecting tech policy (or any policy in general) as they may have been in the past.

The bigger concern with respect to Internet governance, however, is whether tech policy advocates from America will be taken seriously in the future, if we go back on previous promisesdeveloped in thorough processes involving all stakeholders. It was already challenging enough to convince other countries that they should do things our way, particularly with respect to free speech principles and the like, but at least when we used to tell the world, “Do it our way, because this is how we’ve safely preserved our democracy for 200 years,” people elsewhere (however reluctantly) used to listen. But now people around the world are starting to have some serious doubts about our commitment to internet freedom and connectivity for all. So we will need to tweak our message to one that has more traction.

Our message to the world now is that recent events have made it all the more important to actively preserve those key American values, particularly with respect to free speech, because it is all that stands between freedom and disaster. Now is no time to start shackling technology, or the speech it enables, with external controls imposed by other nations to limit it. Not only can the potential benevolence of these attempts not be presumed, but we are now facing a situation where it is all the more important to ensure that we have the tools to enable dissenting viewpoints to foment viable political movements sufficient to counter the threat posed by the powerful. This pushback cannot happen if other governments insist on hobbling the Internet’s essential ability to broker these connections and ideas. It needs to remain free in order for all of us to be as well.

]]>Some thoughts on Net Neutralityhttp://www.digitalagedefense.org/wp/2015/03/15/some-thoughts-on-net-neutrality/
Mon, 16 Mar 2015 00:13:17 +0000http://www.digitalagedefense.org/wp/?p=846[...]]]>I was asked by someone to comment on an opinion article lambasting the recent FCC action to regulate Internet broadband under Title II. Some of the rhetoric surrounding Net Neutrality is so polarized, he observed, that he couldn’t tell fact from hyperbole and was hoping I could demystify what is going on. As I started writing down my thoughts, they began to take the shape of a blog post, which follows here.

The infrastructure allowing people to connect to the Internet is, by and large, in the hands of a few private commercial entities who have figured out that it might be profitable for them to prioritize certain network traffic over other traffic if those originating this content pay them for this prioritization. The worry here is that content prioritization inherently also amounts to content discrimination. If this practice is allowed to continue, such that the only content Internet users can effectively access is that which is produced by moneyed players able to pay for its prioritization, all the grassroots voices or start-up businesses that also depend on the Internet to have their content disseminated, but cannot afford to pay for the broadband carriers for it, will effectively be drowned out.

Of course, not everyone believes that this sort of scenario is something to get worked up over, and this view shows up in the net neutrality debates. But increasingly the attitude of “Net Neutrality? Who cares?” seems to be largely marginalized. Public opinion (especially ever since the John Oliver soliloquy) seems to be of the view that for the Internet to remain the valuable resource it is, entities providing access to it should allow for the transmission all content equally. President Obama has also come out publicly in support of this view, and at least the three FCC commissioners who ended up voting for the Title II classification appear to share it as well.

Essentially the debate has now moved from “should we have Net Neutrality?” to “how do we achieve Net Neutrality?” The problem now is, though, that while we may want a free and open Internet, it’s not entirely clear how we get it.
One of the core questions raised in this debate is what role, if any, the FCC should have in attempting to preserve net neutrality. In fact, the question might at times be better expressed as what role the FCC can have. Federal agencies can’t just help themselves to whatever authority they might wish to have, no matter how useful it might be. They get their authority to regulate from enabling statutes passed by Congress. One of the complications that we are facing in this discussion is that the primary statute in play here governing FCC authority was last significantly updated almost 20 years ago, before the Internet had grown into being the ubiquitous thing it is now, and that update was of a statute originally written in 1934. It’s an outdated, creaky statutory framework that doesn’t really scale very well to meet the realities of today’s Internet economy, but at the moment it’s all we’ve got to work with. Moreover, in the wake of severallawsuits, the FCC does not have a lot of flexibility to interpret that statute in a way that would allow it to act usefully in this space.

Arguably the only path left for the FCC was to use Title II of the statute if it wanted to play a role in ensuring net neutrality. And, on its face, this move makes sense. Title II effectively means that broadband access takes on “common carrier” status. “Common carriage” basically means that certain types of businesses must take all comers and can’t discriminate between who gets to use their services. Hotels, for instance, have to let anyone stay in them. Airlines have to allow anyone to fly with them. In real life we sometimes see exceptions to this principle of nondiscrimination, but it’s a concept that’s been around for a long time and long been applied to certain kinds of telecommunications services. In this case it would mean that an Internet broadband provider needs to treat all the content passing through its systems equally, which is the very heart of what Net Neutrality is about.

In the debates some people still really don’t like Title II being used for Internet broadband access regulation because they don’t believe it should be regulated as a common carrier at all. But there’s also a concern — in fact, it’s even one that’s often shared by the people advocating for Title II classification — that with Title II comes a lot of regulatory baggage. As a result of the classification the FCC arguably is now in a position to do quite a bit of Internet regulation, and some of it could easily be terrible.

Of course, there’s also disagreement over what might be considered “terrible.” For instance, the FCC is now in a position to direct universal lifeline-type subsidies towards broadband rollout, like they do with the telephone. This kind of thing is good if you think these programs are a good idea, and a terrible “tax” if you think they aren’t (in the case of the telephone people who can afford their own telephony service pay an additional fee on their bill, which goes to fund telephonic access for those who can’t).

But in order to foreclose any truly unfortunate by-products to this classification, many of its advocates have actually called for “Title II with forbearance.” In other words, they want the FCC to cherrypick which of the myriad regulation they could put into place pursuant to Title II that they actually put into place. The irony is that although Title II may be necessary to preserve a free and open Internet, implemented poorly it could actually enable the FCC to undermine exactly what the advocates of a free and open Internet are trying to protect.

Ultimately, like many things, the devil is in the details and some of the consternation being articulated lately has arisen because although the FCC has just issued its initial order, no one really knows what all those details, or their effects, will be. And uncertainty is scary. But while I do think there are legitimate regulatory concerns with the Title II framework, I’m nevertheless often frustrated by its critics who seem to either be criticizing the entire principle of Net Neutrality or making nothing but doom and gloom predictions about broadband investment that sound like little more than scaremongering sour grapes by some of those private companies who will now be unable to exploit their market position as fully as they had planned. We must tread carefully in order to make this classification be a good thing rather than bad, but without nuanced argument about what in Title II may actually be truly problematic, we won’t be able to.

]]>California creates new unit to fight cybercrimeshttp://www.digitalagedefense.org/wp/2011/12/14/california-creates-new-unit-to-fight-cybercrimes/
Wed, 14 Dec 2011 16:43:19 +0000http://www.digitalagedefense.org/wp/?p=231[...]]]>The New York Times reports that California has established a division to investigate and prosecute cybercrimes such as identity theft, Internet scams, computer theft, online child pornography and intellectual property theft. The unit already has been handling several dozen cases and joins Texas, Florida and Louisiana in having such units, although California’s scope and mandate will be much broader. (Texas’s and Florida’s cybercrime units focus almost exclusively on online child pornography.)

Per the article, this move was prompted by the difficulty in prosecuting these types of multi-jurisdictional crimes at the local level.

Take the case of George Bronk, a Sacramento-area man, who was sentenced to four years in prison in July for hacking into the e-mail and Facebook accounts of women and blackmailing them with indecent pictures and videos. His victims spanned at least 17 states. Initial attempts to report the blackmail to local law enforcement often proved futile because it could not be tied to any one jurisdiction.

“The unique aspect of technology is that it knows no jurisdictional boundary,” [State Attorney General Kamala] Harris said in an interview Tuesday. “We want to ensure Internet crimes don’t drop off simply because it wasn’t clear for local law enforcement, or the consumer, where to go because an incident occurred in the cloud.”

There appear to be some considerable upsides to this new arrangement: resources can now be allocated more efficiently to deal with crimes that impact more than one area, and the knowledgebase necessary to properly investigate and prosecute them can also be developed in a central location. Also, at least in theory, it may lessen abuse: I know of at least one example, although one from another state, where police in one county deliberately lured defendants into their jurisdictions through online “stings” (I use the word “sting” lightly, as from all accounts “entrapment” would have been more accurate) in order to be able to prosecute them. Having these enforcement powers centralized and more visible would help alleviate similar risk in California.

On the other hand, as the cited example shows, cybercrimes are often Internet crimes, and the Internet is not contained within the state of California. It may be an open question as to the extent California has a duty or right to enforce some of these matters.

]]>Reach of USA PATRIOT Act affects international investmenthttp://www.digitalagedefense.org/wp/2011/12/10/reach-of-usa-patriot-act-affects-international-investment/
Sat, 10 Dec 2011 16:25:56 +0000http://www.digitalagedefense.org/wp/?p=177[...]]]>From ZDNet, reports that the Dutch government is avoiding doing business with US cloud providers out of concern that the USA PATRIOT Act could make any data it stores subject to disclosure, in possible contravention of European data protection law.

Discussed by the European Parliament’s Privacy Platform earlier this month, the Patriot Act is being investigated by European authorities, after Gordon Frazer, managing director of Microsoft UK, exclusively told ZDNet that the Redmond-based company must comply with Patriot Act requests, and other companies with a U.S. presence must do also.

This contravenes European law, which states that organisations cannot pass on user data to a third-party outside the European zone without the users’ permission.

In a written answer to a parliamentary question, Dutch minister Ivo Opstelten asserted that, in response to previous questions (Dutch): “This basically means that companies from the United States in such bids and contracts are excluded.”

]]>American imprisoned for insulting Thai kinghttp://www.digitalagedefense.org/wp/2011/12/08/american-imprisoned-for-insulting-thai-king/
Fri, 09 Dec 2011 06:42:23 +0000http://www.digitalagedefense.org/wp/?p=161[...]]]>An American citizen has been sentenced to 2 1/2 years in prison for having posted criticism of the Thai king online. From Yahoo News:

Gordon, a former car salesman, is accused of having translated excerpts from the unauthorized biography “The King Never Smiles,” published by Yale University Press, into the Thai language and publishing them in a blog. He also provided links to the translation to other two Web forums, prosecutors say.

The case raises a number of issues. First and foremost, the chilling and censorious nature of the Thai “lese majeste” laws, which forbid criticism of the king. From the article:

Thailand’s lese majeste laws are the harshest in the world. They mandate that people found guilty of defaming the monarchy — including the king, the queen and the heir to the throne — face three to 15 years behind bars. The nation’s 2007 Computer Crimes Act also contains provisions that have enabled prosecutors to increase lese majeste sentences.

…

Opponents of the laws say that while the royal family should be protected from defamation, lese majeste laws have often been abused to punish political rivals. That is especially true since the nation suffered a 2006 military coup.

…

Many had hoped that the administration of Prime Minister Yingluck Shinawatra, which has some prominent supporters who have been accused of lese majeste, would reform the laws. The issue remains highly sensitive, however, and Yingluck’s government has been as aggressive in pursing the cases as its predecessors.

…

The rise of the Internet in recent years has given Thai authorities many more targets to pursue. Last month, Information Minister Anudith Nakornthap said Facebook users who “share” or “like” content that insults the Thai monarchy are committing a crime. Anudith said Thai authorities asked Facebook to remove 86,000 pages between August and November because of alleged lese majeste content.

Also notable with this case was that the defendant, Lerpong Wichaikhammat, aka Joe Gordon, while Thai-born, is an American citizen who had written the posts in question while he was living in Colorado. His arrest then came when he had visited Thailand. The case thus raises other important questions, such as:

How can the Thai law apply to foreign content, and thus reach foreign actors? and

What risk do tourists face of incarceration if they should set foot on Thai soil?

Given the role of the Bangkok Airport as a major transit hub in southeast Asia the question is not academic. Will foreign travelers be exposing themselves to possible imprisonment without realizing it? Or, if they do realize it, will these laws have a chilling effect on their own, otherwise potentially protected, speech?